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Teaching International Law
No full textOutlining a wide range of instructional strategies for different student audiences, Teaching International Law presents guidelines and recommendations on best practices for teaching public international law at undergraduate and postgraduate levels, as well as part of law schools and legal training programs
Navigating Your Legal Master’s Program: A Roadmap for Success
No full textThe legal master’s is one of the nation’s fastest-growing degree programs, and Navigating Your Legal Master’s Program: A Roadmap for Success is the first comprehensive preparation guide to help students succeed in their chosen program – whether on-ground or online – and beyond. Written by four legal master’s degree administrators with over forty years of collective experience directing and teaching in legal master’s programs offered from prestigious law schools, this book answers the following questions for students:1. What is a legal master’s degree and why is it beneficial?2. What should I know about the law before entering the program?3. What can I expect to experience in a law school classroom and how can I best prepare for it?4. Whether I am part-time, full-time, online, or on campus, how can I connect with the law school community and what are the benefits of doing so?In addition to delivering guidance from the authors and program administrators, the book offers valuable insights from twenty legal master’s alumni, providing a roadmap for success from those who have succeeded. Navigating Your Legal Master’s Program: A Roadmap for Success will prepare you to experience profound personal growth and act as a driving force for your professional success through your legal master’s program
New York Times v. Sullivan: A Civil Rights Story
Get PDFThe 1964 Supreme Court decision in New York Times v. Sullivan established the “actual malice” rule in libel law, requiring that in order to win a libel suit, a public official must show that a defamatory statement was false and that the speaker made the statement knowing that it was false or “with reckless disregard of whether it was false or not.”
Sullivan involved a libel suit brought by segregationist Alabama officials against the New York Times (“Times”) and leaders of the civil rights movement. Sullivan arose from sectional battles over civil rights and integration in the 1960s. An all-white jury awarded Sullivan $500,000. The purpose of the lawsuit was to attack the civil rights movement directly, and also indirectly, by stifling press coverage of civil rights protest activities. The Times and the civil rights leaders appealed to the U.S. Supreme Court, claiming that Alabama’s strict libel laws, which were similar to most libel laws at the time, violated constitutional guarantees of freedom of speech.
Sullivan has been memorialized as a case that was principally about the First Amendment. Even though observers at the time saw it as a “civil rights case,” Sullivan’s connections to the civil rights movement were lost over time. This Article tells the story of New York Times v. Sullivan as both a First Amendment story and as a “civil rights story.” Sullivan grew out of the civil rights movement and transformed the course of that movement. The Supreme Court’s efforts to assist the civil rights movement resulted in a decision that broadly protected the freedom to comment on government and public affairs. Situating Sullivan in its civil rights context not only complements our understanding of the ways that civil rights and freedom of speech have been intertwined in American history, but may also help to strengthen the image of Sullivan when the ruling is under assault. Many of the attacks on Sullivan are premised on Sullivan as a “press case,” one that primarily protects the institutional press. Sullivan is vulnerable in an era when the public’s opinion of the press is generally low. These attacks might be countered if the public were reminded that Sullivan not only protects the press but also individual dissenters and critics, as the history of Sullivan makes clear
Massey v. Texas: Eroding the Exclusionary Rule and Incentivizing Police Misconduct
Get PDFIn April 2023, the Texas Court of Criminal Appeals upheld the conviction of James Calvin Massey for possession of drugs discovered as a direct result of an unconstitutional Terry frisk. Ordinarily, with limited exceptions, the exclusionary rule prohibits the prosecution from using contraband discovered as a result of unconstitutional police action, akin to the situation Mr. Massey encountered. In fact, that’s exactly why the intermediate court of appeals reversed Mr. Massey’s conviction. When the Texas Court of Criminal Appeals reinstated Massey’s conviction, it broke new ground, holding that because Mr. Massey resisted the unconstitutional Terry frisk, his uncharged misdemeanor offense of resisting—no matter how petty or predictable—constituted an “intervening circumstance” triggering the attenuation exception to the exclusionary rule. As such, the drugs were admissible despite the unconstitutional police action.
To reach its holding, the Texas Court of Criminal Appeals relied on the recent Supreme Court decision in Utah v. Strieff. But the Texas court fundamentally misapplied Strieff. Strieff’s holding depended primarily on the fact that a suspect’s intervening circumstance (an outstanding warrant) was both pre-existing and independent of any unconstitutional police action. Accordingly, in Strieff, the officer’s unconstitutional action did not taint the discovery of contraband. Not so in Massey, which went far beyond what Strieff allowed. Massey, in contrast to Strieff, creates what is in effect a per se rule that all but eliminates the exclusionary rule in Texas whenever a suspect’s reaction to an unconstitutional police seizure or search leads the officer to initiate an arrest.
Not only was the Texas Court of Criminal Appeals’ opinion in Massey wrong on the law, but its holding carries enormous policy implications for policing. While the exclusionary rule exists primarily to disincentivize police misconduct, Massey points officers in another direction: It creates an incentive for police to engage in unreasonable seizures in the hope a suspect will react in a petty and predictable manner, as did Mr. Massey, providing the officer with a new basis for arrest and accordant search. Even when a suspect’s response is a direct result of a Fourth Amendment violation, Texas courts must nearly always treat that response as attenuated from the violation. Ultimately, Massey invites the very behavior the exclusionary rule was designed to deter.
This Article is both descriptive in its explanation of the exclusionary rule and its exceptions and analytical in its critique of Massey and the foreseeable consequences of that flawed decision. While one focus of the article is on a recent Texas case, it is not a Texas-specific discussion. This Article, more than anything, gives needed attention to a recent trend of limiting the exclusionary rule against the backdrop of established U.S. Supreme Court guidance. It is, in this regard, a cautionary tale for courts in all states to fully consider both binding precedent and the policy implications at stake
A Constitutional Right to Exclude Evidence
Get PDFThe Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants must be accompanied by reciprocal obligations on the prosecution. As a result, defendants know how to assert these rights, and courts have clear guidance to decide whether they were violated, allowing for wrongful convictions to be both prevented and overturned.
Conversely, the Court has never made clear the circumstances in which the State’s admission of unfairly prejudicial evidence violates a defendant’s right to due process. In the absence of such a ruling, courts frequently admit evidence that poses a high danger of unfair prejudice unless it merely has minimal probative value. As a result, wrongful convictions connected to such evidence can neither be corrected nor prevented. This Article argues that courts should recognize a constitutional right to exclude evidence. Under this right, even if unfairly prejudicial evidence satisfies the rules of evidence, its admission would violate the Due Process Clause if it renders a defendant’s trial fundamentally unfair
Reconstructing Citizenship
Get PDFIn our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by incarceration alone. Second, the lived experiences of those denied the right to vote are notably absent from the literature. This paper seeks to re-center the conversation about the right to vote in the lives of those impacted by the policies that restrict the franchise.
To do so, this paper uses the participatory law scholarship (“PLS”) methodology to draw heavily from the shared experiences of the coauthors, who collaborated in 2022 on an unsuccessful attempt to overturn Connecticut’s felon disenfranchisement law and open pathways to voting for incarcerated people. Specifically, this paper lays out the historical and theoretical bases that inform policies of conviction- or incarceration-based disenfranchisement. It then turns to two critical and novel claims. First, it challenges the bases and scope of such policies, noting their broad impact. Second, it grounds the story of conviction- or incarceration-based disenfranchisement in the lives of affected individuals and their communities. This second point is critical; we seek to marry the lived experience of a co-author, James Jeter, with the academic treatment of that experience.
Vital claims emerge from James’s firsthand narrative. First, disenfranchisement creates a ripple effect that moves through communities, impacting not only the incarcerated and convicted person but also all those who love and depend on them. Second, disenfranchisement that is the product of contact with criminal legal systems creates and perpetuates a gap in representation. Disenfranchised people do not exist in a vacuum. They are parents, spouses, children, and partners. Denying their right to vote denies their ability to directly represent not only themselves, but also their communities. Instead, disenfranchisement creates a secondary representation model in which those who live in affected communities depend on others to represent and defend their interests. At best, someone else’s vote aligns with the interests of those in disenfranchised communities. More often, the votes of those outside the community become acts of charity and otherizing. This is clear in descriptions of social policy. Through rhetorical tropes ranging from “welfare queens” to “law and order,” those in power promulgate policies constructed around the suggestion that there are populations requiring support, saving, and protection through secondary representation as opposed to enjoying the ability to represent themselves and their own interests . And so, this paper joins an existing conversation about power, representation, and exclusion with a conjoined narrative—a firsthand account of disenfranchisement, community organizing, and the democratic harm wrought by current policies
China, the TRIPS Waiver, and the Global Pandemic Response
Get PDFThis chapter identifies three distinct reasons why China took a middle-of-the-road position in the debate on the COVID-19 TRIPS waiver at the WTO. It also recounts the country’s more assertive position in the run-up to the adoption of the Ministerial Decision on the waiver. Drawing eight lessons from the international debate on the waiver and the subsequent Ministerial Decision, the chapter offers insights into the future role China can or will play in future international policy debates at the intersection of intellectual property and public health, including during the next pandemic
The Lack of Victim Protection in the Enforcement of the Trafficking Victims Protection Act
Get PDFOver the past twenty-two years, United States federal courts have seen many cases regarding forced labor and the importation of goods produced by victims of forced labor trafficking. To resolve these cases, the court must interpret § 307 of the Tariff Act to determine whether victims can recover against their traffickers. Recently, an issue in the interpretation of forced labor has arisen in courts: whether an attempt at importing goods is sufficient to establish a cause of action as a violation of the Trafficking Victims Protection Reauthorization Act’s prohibition on forced labor imports. Courts that interpret forced labor narrowly to exclude attempts at forced labor imports conflict with the congressional intent to protect victims and prosecute traffickers by perpetuating the production of goods made by forced labor, and prolonging harm to victims of labor trafficking, as well as working against the intent of the executive branch
Defrosting Regulatory Chill
Get PDFIn Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of facing multimillion-dollar claims brought by investors to international arbitration tribunals. But this widely accepted model assumes that the State, like Odysseus, is a single, static unit that can be tied to the mast.
Analyzing twenty-five years of international investment dispute data, this Article’s findings challenge the conventional wisdom that the “ropes” are effective in chilling energy government policies. The Article analyzes two variables: 1) the time elapsed between the initial filing of an arbitral claim and the final award and 2) changes in the administration of particular countries during the pendency of the arbitration proceedings. My objective is to identify how often the government that was in power at the time of the enacted regulation is the same actor that has to compensate the investor.
The Article concludes that the chilling effects assumption does not apply evenly across all sectors and actors. Paradoxically, those countries with more democratic transitions tend to drag out the arbitration proceedings for a longer period, and investors there face more challenges in recovering compensation. In contrast, in those countries where the same party or officer remained in power for more than a decade, the government dropped out of the system by denouncing the treaties, tended to settle earlier in the process, or otherwise avoided dragging out the compensation stage. Rather than tying the hands of the State, the investment arbitration system tends to generate disparate incentives depending on who is likely to be left with the bill. Ultimately, the State, as a subject of international responsibility, has to pay, but the government actors’ self-interests predominate. Those government actors do not necessarily contemplate the country’s long-term interests, but rather the shortterm benefits of policies affecting foreign investments. Rather than being the ropes that tie countries to the mast, we see that international arbitration proceedings result in individual government actors abandoning the ship and leaving someone else to pay the bill
The Submerged Administrative State
Get PDFThe United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.
This Article shows that the administrative state is systematically submerged in two ways. First, administrative agencies are constrained in their communications with the public: it is difficult for them to publicize their own accomplishments and successes due to a range of legal, political, and resource constraints. Second, agency actions are frequently opaque: it is difficult for the American public to perceive, comprehend, or trace policy outputs back to government action. Together, these factors have the effect of making Americans less aware of the work that the administrative state does, thereby undermining the public’s trust in government.
The Article then argues that it is time to unsubmerge the administrative state. Doing so has the potential to rebuild trust in government by bringing administrators and their expertise to light, revealing the extent of benefits provided by agencies, and bolstering public participation in agency processes. This approach comes with potential perils, including the dangers of propaganda, skewed agency priorities, and backlash, yet these dangers are outweighed by the necessity of bringing the administrative state to light